Sisters of Providence v. McGuire

52 P.3d 1113, 183 Or. App. 503, 2002 Ore. App. LEXIS 1366
CourtCourt of Appeals of Oregon
DecidedAugust 28, 2002
Docket00-04322 and 00-02303; A113375
StatusPublished
Cited by2 cases

This text of 52 P.3d 1113 (Sisters of Providence v. McGuire) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sisters of Providence v. McGuire, 52 P.3d 1113, 183 Or. App. 503, 2002 Ore. App. LEXIS 1366 (Or. Ct. App. 2002).

Opinion

SCHUMAN, J.

The Workers’ Compensation Board (board) awarded claimant temporary disability benefits and permanent partial disability benefits. Sisters of Providence, claimant’s employer, seeks judicial review. We affirm.

The following facts, found by an administrative law judge (ALJ) and adopted by the board, are undisputed.

Claimant worked for employer as a parking attendant and valet. Her duties included helping disabled people into and out of their vehicles and helping them move from the vehicles to and from employer’s building. On August 5,1999, while at work, claimant was knocked to the ground by an automobile moving approximately 15 to 20 miles per hour. She suffered what the treating physician called “low back strain and contusion” and spent two days in a hospital. Her pain did not abate, so she sought treatment from a physician who, on August 27, 1999, reviewed X-rays, recommended massage, but did not make a medical diagnosis. A month later, another physician, Dr. Datena, diagnosed “a lot of soft tissue type injuries” and authorized her return to light duty work. On October 25,1999, employer accepted her claim for a disabling right low back contusion.

Claimant’s low back pain continued, as did pain radiating down her legs. In November, she returned to Datena. He wrote that the “radicular symptoms” resulted from “excessive activity and lifting while at work,” released claimant to modified work, and prescribed medication and physical therapy.

Shortly thereafter, on November 3,1999, and January 3, 2000, claimant underwent two employer-mandated medical exams (CMEs)1 where she was examined by a total of [506]*506six employer-chosen physicians. All agreed that claimant was medically stationary and could return to her regular work, and all agreed that she experienced pain, although one physician believed that the pain did “not have organic causes.” Two of the physicians reported limited range of motion but believed that the limitation was not due to the accepted low back condition.

On January 4, 2000, a physician’s assistant in Datena’s office treated claimant; his report indicated that she continued to experience low back pain radiating into her legs.

Employer then began the claim closure process. Under ORS 656.245(2)(b)(B), “only the attending physician at the time of claim closure may make findings regarding the worker’s impairment for the purpose of evaluating the worker’s disability.” However, findings in which the attending physician concurs are considered the attending physician’s and can also be used. OAR 436-035-0007(13). Therefore, in order to make the CME opinions usable in the claim closure, employer, on January 18, 2000, wrote Datena in his capacity as claimant’s attending physician, asking him to concur. However, the next day, without waiting for Datena’s response, employer issued a Notice of Closure, awarding claimant temporary disability benefits but no permanent partial disability (PPD).

On January 20, 2000, the day after this claim closure, a person in Datena’s office who identified herself only as “Sherry” returned employer’s letter that had requested confirmation of the CME reports. The “check the box” spaces next to the sentences, “YES, I do agree with the [CME] reports,” and “NO, I do not agree with the reports,” were both blank. In the space for “COMMENTS,” Sherry wrote the cryptic message: “Per letter 12/7/99. Dr Datena is no longer treating MD due to Or Wk Comp Law — a Prov MCO physician should handle closing.” No letter dated “12/7/99” is in the record. Nor does anything indicate why employer asked Datena whether he concurred with the CME reports and then closed the claim the next day without hearing from him, or whether employer, after issuing the claim closure, made any further attempts to discover who, if anybody, claimant’s [507]*507new attending physician was and whether he or she agreed with the CME reports.

Claimant requested reconsideration of the disability findings contained in the Notice of Closure. Pursuant to ORS 656.268(5)(c), the Appellate Review Unit (ARU) of the Department of Consumer and Business Services (DCBS) appointed a medical arbiter, Dr. Berselli. He examined claimant on May 3, 2000, and reported that he suspected she had radiculopathy (a “[d]isorder of the spinal nerve roots,” Stedman’s Medical Dictionary, 1503 (27th ed 2000)). He requested permission from DCBS to have her tested. DCBS refused. He then issued a follow-up report describing the range-of-motion impairment he had found and stating that it was “due to the accepted condition.” Based on that report, the ARU issued an Order on Reconsideration granting claimant 13 percent unscheduled PPD for range of motion impairment in her low back. The order also modified the award of temporary disability by shifting the termination date from December 9,1999 (the date employer used) to January 3, 2000 (the date the physicians determined claimant was medically stationary).

Employer appealed, arguing that the CME reports (indicating claimant was ineligible for PPD) were more persuasive than the medical arbiter report. The AU, however, concluded that the CME reports were not “legally available” due to ORS 656.245(2)(b)(B), which, as noted above, precludes the use of any medical reports except those made by or concurred in by an attending physician or, under an explicit exception to that statute, a medical arbiter. The ALJ also rejected employer’s argument that the medical arbiter’s findings of impairment caused by the injury were not sufficiently supported by evidence in the record and its argument that the termination date for claimant’s temporaiy disability was properly December 9,1999. Employer appealed to the board, and the board affirmed. Employer now seeks judicial review.

As its first assignment of error, employer argues that the board improperly refused to consider the CME reports in determining the extent of claimant’s PPD. The [508]*508argument proceeds as follows. ORS 656.245(2)(b)(B) provides, in part:

“Except as otherwise provided in this chapter, only the attending physician at the time of claim closure may make findings regarding the worker’s impairment for the purpose of evaluating the worker’s disability.”

A relevant exception “provided in this chapter” derives from ORS 656.268(5)(c), (6)(f) and (7)(a), dealing with claim closure. Under those provisions, when a worker seeks reconsideration of the impairment rating in a claim closure, the director of DCBS appoints a medical arbiter, whose report may also be used in the reconsideration. Further, as we have noted above, medical findings in which an attending physician concurs are considered the attending physician’s and can also be considered. Under the relevant statutes, then, in a proceeding to reconsider a claim closure, the only admissible medical opinions regarding impairment are those made or adopted by the attending physician and those made by an appointed medical arbiter or arbiters.

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Cite This Page — Counsel Stack

Bluebook (online)
52 P.3d 1113, 183 Or. App. 503, 2002 Ore. App. LEXIS 1366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sisters-of-providence-v-mcguire-orctapp-2002.